Why the human rights act matters to doctors

Definitions of informed consent and negligence may be challenged, and lack of resources will not excuse poor care

The Human Rights Act 1998, which comes into full force on 2 October, is a momentous development in the constitutional history of the United Kingdom, and doctors need to take it seriously.1 The act revolutionises the British idea of freedom, which is a somewhat precarious notion that you can do anything you want, provided it is not illegal. This idea of freedom is rather different from the doctrine of positive rights developed in other countries. The notion of the citizen entitled to a list of positive rights has often been the product of revolutionary movements—for example in France the United States and the Republic of Ireland.

The problem is that parliament can legislate at any time to restrict individual freedoms. It frequently does—for example, the author Oscar Wilde's imprisonment for gross indecency, over a century ago, is a case in point. And in an age as susceptible to moral panic as ours, whether about the age of consent or paedophilia, the risks posed by ill thought out and repressive legislation are painfully apparent.

What does the act do? It incorporates most (though not all) of the European Convention on Human Rights. This convention was adopted by the countries of Europe as part of a collective response to the horrors of the second world war. The convention was drafted by British lawyers, who were responsible for the broadly drafted lists of exceptions that accompany most of the rights. The convention, and in turn the act, gives everyone a “bundle” of defined rights. These rights are not just for individuals; companies are also protected (see box).

These rights are not all absolute. The only absolute right is article 3. Some rights—such as the rights to life and to liberty—are qualified by specific exceptions (for example, persons of “unsound mind” may be lawfully detained). Other rights are subject to much more broadly drawn qualifications. For instance, article 8.2 allows the state to restrict the right to respect for private life provided that any restrictions are “in accordance with the law” and are “necessary in a democratic society” in the interests of “national security, public safety or the economic well-being of the country … the prevention of disorder or crime … the protection of health or morals, or … the protection of the rights and freedoms of others.” Judges will have to conduct delicate balancing exercises between the interests of the individual and the wider community.

How does the act work? All public authorities have a new statutory duty to act compatibly with human rights (section 6). The NHS is a public body. Therefore, NHS practices, trusts, health authorities, and clinics licensed by the state will all be carrying out public functions and come under the act. People claiming that their rights have been violated now have a right to bring proceedings and claim damages (section 7). In future, when legal disputes arise between the state and the individual, judges will be obliged to interpret all laws consistently with human rights (section 3). If this proves impossible, the judge can declare the law in question to be incompatible with human rights (section 4). Judges do not, however, have the power to strike down acts of parliament, as constitutional courts in other countries do.

Lawyers are gearing up for test cases. Issues about consent and confidentiality are likely to be hot topics. Teenagers should get greater autonomy in making decisions about whether to accept or refuse treatment. Parents of children who do not want certain types of treatment on religious or other grounds—the case of the Siamese twins being an obvious one—should have more power to determine what happens to their infant children. The act should give patients greater opportunities to obtain information. The current definition of “informed consent”—meaning, loosely, what the doctor decides you should know—may be altered in favour of a version of informed consent more common in the United States in which patients are told “everything.” The Bolam test is another tenet of medical law which may be reviewed. This test defines the standard of care which doctors must meet, if they are not to be negligent. At present doctors set the standard of care themselves: the test is, would a responsible body of medical opinion support the act in question? But patients' lawyers are keen to argue that it should not be a sufficient defence to a medical accident (especially when life is lost) to say that other responsible professionals would have done the same thing.

Patients will be able to challenge lengthy delays in treatment on the NHS. Elderly people can no longer be subjected to arbitrary “do not resuscitate” orders in hospital or to degrading treatment in nursing homes. Excuses about lack of resources will cut no ice under article 3. Drug companies too will be vigilant in protecting their rights to property and freedom of speech: bans on direct-to-consumer advertising will almost certainly be challenged. But health professionals will also be able to claim protection under the act. Junior doctors forced to work long shifts may claim the benefit of article 4. And it should be more difficult to suspend a doctor or nurse indefinitely while numerous agencies make protracted investigations into his or her conduct.

A Scottish judge (now retired) has called the act “a pain in the neck for judges and legislators” and “a goldmine for lawyers.” However, we should not be so cynical. The act is intended to benefit everyone. It brings us into line with other democracies and is a civilised start to the new millenium.